State v. M.G.

2017 Ohio 5750

• Court: Ohio Court of Appeals
• Decided: July 6, 2017
• Docket: 105192
• Status: Published

Opinion

[Cite as State v. M.G., 2017-Ohio-5750.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105192

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

M.G.

DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-03-437810-ZA

BEFORE: Jones, J., S. Gallagher, P.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: July 6, 2017 ATTORNEYS FOR APPELLANT

Mark Stanton Cuyahoga County Public Defender

John T. Martin Assistant County Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

BY: Diane Smilanick Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

LARRY A. JONES, SR., J.: {¶1} Defendant-appellant M.G. appeals the trial court’s denial of his application to seal

his prior conviction without a hearing. The state, pursuant to Loc.App.R. 16(B), concedes the

error. We reverse and remand for a hearing on M.G.’s application to seal his prior conviction.

{¶2} In 2005, M.G. pleaded guilty to receiving stolen property and forgery. He was

sentenced to one year of community control sanctions. He violated his community control

sanctions and was subsequently sentenced to six months in prison. In 2015, M.G. filed an

application to seal his record of conviction. The state opposed the motion. The court denied

the motion without a hearing.

{¶3} M.G. appealed and raises one assignment of error for our review in which he argues

that the trial court erred in denying his motion to seal his record of conviction without first

holding a hearing. The state filed a notice of conceded error pursuant to Loc.App.R. 16(B)1

and an appellee brief in which the state agrees that the trial court was mandated to hold a hearing

but argues that M.G. is not eligible to have his record of conviction sealed.

{¶4} Upon the filing of an application to seal a record of conviction, a trial court is

required to set a hearing date and notify the prosecutor. R.C. 2953.32(B). A trial court must

first hold a hearing because evidence is generally required in order to make the several

determinations under R.C. 2953.32(C)(1)(a) through (e). State v. M.L., 8th Dist. Cuyahoga No.

105214, 2017-Ohio-2764, ¶ 1, citing State v. M.R., 8th Dist. Cuyahoga No. 104712,

1 Loc.App.R. 16(B) provides:

Notice of Conceded Error. When a party concedes an error that is dispositive of the entire appeal, the party conceding the error shall file a separate notice of conceded error either in lieu of or in addition to their responsive brief. Once all briefing is completed, the appeal will be randomly assigned to a merit panel for review. The appeal will be considered submitted on the briefs unless the assigned panel sets an oral argument date. 2017-Ohio-973, ¶ 10.

{¶5} In this case, the court summarily denied M.G.’s application without holding a

hearing. Even if the state is correct that M.G.’s conviction is not eligible to be sealed because

he does not qualify as an eligible offender as defined by R.C. 2953.31(A), M.G. is still entitled to

a hearing.

{¶6} The sole assignment of error is sustained. We vacate the order denying M.G.’s

application and remand for further proceedings consistent with R.C. 2953.32.

It is ordered that appellant recover of appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

SEAN C. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR